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Monthly Archives: November 2014

There are so many things that one learns in the practice of law. There are few other fields where one is allowed such privileged entry into the confidences of others or better able to observe and learn from the rich pageantry of modern life. Speaking of the practice of medicine early last century, Sir William Osler (1849-1919) in his Counsels and Ideals said of medicine what also holds true for law:

“The practice of medicine is an art, not a trade; a calling, not a business; a calling in which your heart will be exercised equally with your head. Often the best part of your work will have nothing to do with potions and powder, but with the exercise of an influence of the strong upon the weak, of the righteous upon the wicked, of the wise upon the foolish. To you, as the trusted family counselor, the father will come with his anxieties, the mother with her hidden grief, the daughter with her trials, and the son with his follies. Fully one-third the work you do will be entered in other books than yours. Courage and cheerfulness will not only carry you over the rough places of life, but will enable you to bring comfort and help to the weak-hearted ….”

Some of the stereotypes from Sir Osler are awkward to modern ears over a century later, but the sentiment still resonates. One can argue whether in the modern age lawyers, rather than physicians, have, perhaps, the better claim to access to the anxieties, griefs, trials, and follies of their clients/patients, or whether, under pressure from specialization, economy, efficiency, either has as fair a claim as their progenitors. Be that as it may, I know that I continue to experience in my practice the privilege of speaking with my clients of their hopes and fears in the face of trial.

Trial and error, trials and tribulations, trial by ordeal. Trials are a challenge even for those who take pride in their competence in managing their affairs.

As is so often the case, those least familiar with the demands and risks of suit, are loudest and most heedless in their invocation of the remedy. I do not counsel extremes. Professionally, I neither take the stance offered by Charles Dickens in Bleak House: ”Suffer any wrong that can be done you rather than come here!” nor do I plunge into litigation thoughtless of the questions that must first be asked.

I offer now five elements that must be considered, with special emphasis upon the fifth, the last, but not least of them.

1. Legal Responsibility. Is the law supportive of the claim? Did the other party breach their legal duty? Example: Person A takes a swing at Person B, who ducks, with the result that Person C (you) are hit. It is not clear that Person B owes you a duty to take the hit or not to duck, even though had B not reacted in that way, you (C) would have been spared. No duty can mean no case, even if harm befell you.

2. Causation. Did the breach of duty cause a problem? Example: It is unlawful to have doors in a school open inward because in the panic of a fire students can get crushed against the door – hence, “panic bars.” But, if there was a fire and everyone exited from another properly designed exit, the fact that some other unused door opened inward would not be a case for damages. That breach caused no damages.

3. Damages. Did the claimant sustain injury or “damages?” Example: My mother reported being on an airplane where, during turbulence, hot water for tea was spilled and (get this) almost scalded her arm, but missed. Even if pouring hot water during turbulence may be unwise in the extreme under certain circumstances, if there is no harm, there is no case. Put another way: no harm, no foul.

4.A Fund to Pay the Damages. Although this is self-evident to trial lawyers, it bears noting here: if you get a huge judgment having successfully proven breach of duty (liability), causation, and damages, you still need a defendant with sufficient funds to pay. Usually this is insurance or a defendant with sufficient assets. In the absence of adequate funds to compensate an injury, your claim may be limited to what funds exist. Example: You are the victim of a car accident caused by an uninsured driver with few, if any, significant assets. Your sole compensation may be from your own auto insurance. Your own Underinsured/Uninsured Motorist Coverage (UIM), Personal Injury Protection (PIP or Medical Pay), Comprehensive Coverage (Property Loss), or Health Insurance may be the only funds available.

And the fifth thing:

5. Grit. Without the personal stamina, fortitude, mental toughness to pursue a lawsuit, the “band width” to be a party-plaintiff and still carry on with your life with a tolerable level of functionality, the ability to compartmentalize the unavoidable anxieties so that you are not overwhelmed, you cannot go to court. Life is short. If the stresses and strains of litigation are so stressful that life is unpleasant, nights are sleepless, and the joys and pleasures of life are severely compromised, you may properly conclude that the matters at issue simply do not justify the choice of pursuing a lawsuit.

I have represented many wonderful people, people performing stressful occupations beyond anything I could ever imagine handling (e.g. test pilot) whose mental configuration was such that litigation was hard on them. Very hard. In this, the best advice that can be given is old, very old: Nosce te ipsum. [Know Thyself.] There is no requirement that you choose litigation as a life-style or tactic. You may find that just “paying the two dollars” or “turning the other cheek” better suits your personal values.

There is no dishonor in this. In fact, although a trial lawyer professionally, in my own personal affairs I tend towards the end of the spectrum articulated by Charles Dickens above: “Suffer any wrong that can be done you rather than come here!” For every person, the choice of litigation is a balance. It should rightly depend both on your native predisposition and tolerance for the anxieties of the process and the importance of the issue. On that matter, with the guidance of counsel, you are the proper person to make that choice.